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TORTS "BIG PAPA" OUTLINE

Definition of Tort: A civil wrong arising independently from contract. Other Definitions: Respondeat Superior = employer liable for damages caused by employee The Big Three: 1) Intentional Tort (Battery, assault, false imprisonment, IIMD) 2) Negligence 3) Strict Liability (Abnormally dangerous activities; defective product) Exam Tips: · Always be considering the facts of the case. · Look for the status of the individuals in the case (licensee, invitee, etc.) Main Policy: Provide adequate compensation to an injured & deterring wrongdoers.

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INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY INTENT A) Definition: 1) Doing the act for the purpose of either causing the contact or apprehension of it; or 2) knowing that such contact or apprehension is substantially certain to be produced from the act. B) Distinguish Act vs. Consequences: Intent centers upon the act, not the consequences. If intended to make contact but didn't intend to injure, is still liable for battery. C) Transferred Intent: If held the necessary intent with respect to one person, he will be held to have committed an intentional tort against any other person who happens to be injured. D) Unintentional: Unintentional acts lack intent; but they may fall under negligence. 1) Unanticipated Illness: If a person is struck suddenly by illness which he had no reason to anticipate, and the illness renders him unable to maintain control of himself or an instrument that he's operating, then he is not liable for the consequences. Cf. Cohen v. Petty (fainted while driving car) E) Special Situations regarding Intent: 1) Distinguish from Strict Liability: Subjects actor to strict liability regardless of intent or negligence for public policy reasons. Spano v. Perini (strict liability for blasting) 2) Minors: Age is largely irrelevant. An intentional tort committed by a minor is the same as he was an adult (but if he is so young that he cannot form intent, then intentional torts will fail). 3) Insane Persons: Insane persons liable only if they are capable of entertaining and have entertained the intent of the act. (different than criminal standard.) (a) Exception: Institutionalized insane person who cannot control or appreciate the consequences of his actions is not liable for injuries caused to those employed to care for him. (b) Negligence: Even if insane person not liable, negligent supervision c/a may still lie against persons charged with the care of the kook. 4) Mistake: Damages caused by mistake in good faith do not remove liability from the party which caused the damages. Ranson v. Kitner (1889) II) BATTERY A) Elements: 1) Intentional act causing 2) a harmful or offensive, 3) bodily contact. B) Term Definition: 1) `Intent': 's volitional act with desire or with substantial certainty that a harmful or offensive bodily contact will occur. (a) Exception: Unconscious/instinctive acts not volitional (but stretching out arm to stop fall is volitional.) 2) `Offensive': Damaging to a "reasonable sense of dignity". (hypersensitive reaction insufficient.) C) Special Situations: 1) Extension of 's Body: Unpermitted and intentional contact with anything connected or held by 's body as to be customarily regarded as part of the other's person is battery. (a) Example: snatching an item from 's hand, or touching with an inanimate extension of 's body (stick, false arm, etc.). 2) Resulting Injuries: When commits a battery against and the injuries are more extensive than a reasonable person could anticipated, is still liable for the full extent of the injuries. 3) Plaintiff Unaware: Even if is unaware of the contact, it can still be battery. 4) Damages: Compensatory recoverable without actual damages (pain & suffering, etc.). Punitive if acted maliciously. III) ASSAULT A) Elements: 1) An intentional act 2) creating in the mind of an apprehension of an imminent battery 3) coupled with an apparent present ability to commit the battery. B) Intent: intends to cause an imminent apprehension of a battery. I)

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C) Special Situations: 1) Unaware of danger: must be aware of the threatened contact. 2) Faking: Even if doesn't intend to make contact with , but just wants to create the apprehension, intent still exists. 3) Words, Not Action: Threatening words in themselves cannot constitute an assault. But if makes a threatening gesture to back up threatening words, then it is assault. 4) If Not Imminent: If threats specify future action, then they are not imminent enough to constitute an assault. 5) Any Source: liable if he arouses apprehension of harm from any source (e.g. "Look out! X threw a rock at you!"). 6) Damages: Actual damages not required (same as battery.) IV) FALSE IMPRISONMENT: A) Elements: 1) Intentional act by 2) To confine to a specific area, 3) Coupled with an actual confinement of which is aware. B) Term Definition: 1) `Intent': must intend to confine OR know with substantial certainty that will be confined by 's actions. C) Exceptions: 1) Merchants: Merchants are allowed a reasonable time to detain a suspected thief in order to make a reasonable investigation into the facts. 2) Negligent Commitment: If a person is formally committed to an institution upon the negligent diagnosis of a doctor, there is no false imprisonment. But if commitment procedures are not followed, then there is false imprisonment. D) Special Situations: 1) Restraint of Property: Retention of a plaintiff's property may provide the restraint necessary to constitute false imprisonment. 2) Restraint by Words Only: (a) A person may be falsely imprisoned by mere words which he fears to disregard. (b) But if words are merely persuasive and convinced person to stay, c/a fails. 3) Unknown Imprisonment: If is unaware of the restraint upon him (if he doesn't know he can't leave), then 's not liable. 4) False Arrest: If officer lacks valid warrant or probable cause to make an arrest, any restraint lacks adequate legal justification and is false imprisonment. 5) Refusal to Release: When is confined by actual or apparent physical barriers, and refuses to release when is under a duty to do so, is liable. 6) Damages: Actual damage not required (like battery). may also recover for injuries suffered from reasonable attempt to escape. INTENTIONAL INFLICTION OF MENTAL DISTRESS E) Elements: 1) Intentional or reckless conduct by 2) Involving extreme or outrageous behavior 3) Intended to cause severe emotional distress 4) And which causes severe emotional distress. F) Term Definition: 1) `Intentionally or Recklessly': Includes-- (a) Desire to cause distress; (b) Knowing with substantial certainty distress will occur; or (c) Recklessly disregarding the high probability that distress will occur. 2) `Severe and Outrageous': Conduct must exceed all bounds tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind. (a) Response: must suffer a severely disabling emotional response from 's conduct, often including a physical illness relating to the conduct. (1) Traditionally: Demonstrable physical injury was required. (2) Modern: Emotional distress is sufficient. (b) Insults/Outbursts: Insults or abusive outbursts do not meet `severe' element. (1) Exception: Racial or gender insults may be actionable. G) Exception: 1) Transferred Intent: Generally not applied here. (although recklessness may apply). (a) Exception ­ Immediate Family: If directs his act toward a member of 's family, and knows is present, then can often recover. H) Special Situations: 1) Common Carriers: Common carriers & employees (individual/organization that transports passengers/goods for hire) are held to a higher degree of care. Why?: public policy to secure for the public safe and comfortable service. 2) Sexual Requests: Generally soliciting a women for sex is neither assault or IIMD. [Walsh thinks differently].

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3) Damages: Compensatory/punitive recoverable (and for any bodily harm that results.) I) Examples: 1) Breaking off Marriage Engagement: Breaking off the engagement is not enough; but proposing to a woman and making marriage arrangements while married to someone else may satisfy the elements. 2) Juror: A juror who didn't show up one day during a murder trial was placed in a cell with the murderer as punishment; stated a valid c/a. 3) Collection Agency: Reasonable business does not affect IIMD; but a collection agent who called and said it was an emergency call, that there would be quite a shock to , and when said she was ready for the news, the agent said, "Pay your bill!". 4) Veterinarian: Vet and animal hospital threatened to "do away" with 's dog if didn't pay his bill. 5) Racial Remarks: Publicly shouting racial epithets at employee met IIMD. 6) Pregnant Women: Shouting obscenities and abuses at a pregnant woman that caused severe shock and resulted in miscarriage met IIMD. 7) Dead Bodies: IIMD has been used to recover damages from s who mutilate, disinter, or interfere with the burial of dead persons. V) TRESPASS TO LAND A) Elements: 1) An intentional, unauthorized (unlawful) 2) Entry 3) Onto the real property of another. B) Term Definition: 1) `Intentional': must act intentionally to enter upon the land. Not intentional if enters under duress. 2) Transferred Intent: applies here. 3) Unintentional: Damages recoverable for negligence. C) Special Situations: 1) Overstaying Trespass: Failure to leave or remove object after consent or privilege is withdrawn. 2) Particles: If knowingly causes objects to enter 's property, it is a trespass. (nonphysical things treated as a nuisance.) 3) Airspace: Only if below minimum flight altitude. D) Damages: 1) Nominal: Even if no damage to property, can recover nominal damages. 2) Compensatory: Damages recoverable in the amount of damage that was done. VI) TRESSPASS TO CHATTELS A) Elements: 1) An intentional use or interference with a chattel possessed by another 2) Without consent or privilege, 3) Which invades a chattel interest. B) `Chattel Interest': Impairing condition/quality/value; dispossessing; or depriving use for substantial period. C) Special Situations: 1) Harmless Interference: Recovery not possible for a "harmless intermeddling" with a chattel, unlike trespass to land. 2) Electronic Signals: Electronic signals generated and set by computer have been held to be sufficiently physically tangible to support a trespass to chattel c/a. D) Damages: liable only for damage to the chattel (including loss of use, e.g. rental value), but not the full value of the property (Contra conversion, infra.) VII) CONVERSION A) Elements: 1) An intentional exercise of dominion or control over a chattel 2) Which so seriously interferes with the right of another to control it 3) That the actor may justly be required to pay the other the full value of the chattel. B) Special Situations: 1) Bona-Fide Purchaser: A good faith purchaser who purchases goods from a thief is liable for conversion if he does not return the goods on demand. 2) Restricting Access to Chattels: If severely restricts 's access to chattels owned by , then may be liable for conversion. 3) Misdelivering Chattel: Sufficient even if by innocent mistake. 4) Intellectual Property: Information that is gathered and arranged at some cost and sold as a commodity is protected as property and subject to conversion. Includes ideas formulated w/ labor / inventive genius/ literary works / scientific research. 5) Exceeding Authorization: One authorized to use a chattel may be liable for conversion if the chattel is used in a manner exceeding the authorization. 6) Effect of Good Faith: Even if acted in good faith and under a mistake does not prevent liability for a conversion.

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(a) Exception: Bailees/servants dealing w/ chattels of third persons under directions from their bailors/employers ­ such as parking garage attendants allowing a stolen car (without their knowledge) to be parked overnight in a parking garage. C) Damages: 1) Full Value: Full value of the goods converted recoverable. 2) Returned Goods: Damages adjusted according to value of goods (no damage to goods, then only nominal damages recoverable). PRIVILEGES AND DEFENSES TO INTENTIONAL TORTS VIII) CONSENT A) Express Consent: has indicated consent to an invasion of his private right through an overt act manifesting his intent to consent. B) Apparent Consent: Satisfied by an objective manifestation of 's words or conduct, regardless of 's subjective state of mind. Can be implied from conduct, custom, or circumstances. C) Consent Implied by Law: 1) Definition: (1) is unable to give consent; (2) immediate action is necessary to save 's life or other important interest; (3) there is no indication that would withhold consent; and (4) a reasonable person in 's position would consent. D) Nullification of Consent: 1) Fraud: Consent procured by fraud is nullified. (a) Example: Person represents himself as a physician and receives consent by a patient; that patient's consent is nullified if the person is not a physician. 2) Exceeding Scope: If act goes beyond scope of consent, then consent nullified. 3) Duress: Consent is nullified if given under duress. 4) Incapacity: Nullified if is incapable of consenting (e.g. mentally incompetent, infant.) E) Illegal Activities: 1) Majority Rule: Illegal act nullifies any consent to participate in the act, thus opening up liability for damages that result. (accords with Restatement.) 2) Minority Rule: If expressly consents to an illegal activity and incurs damages, may not recover. (a) Exception: If is member of a class protected by the violated statute, not consent. F) Medical Consent: 1) Definition: If patient did not give consent to medical treatment, physician may be liable. (a) Exception: If during an operation, the physician discovers a condition not covered by the consent but which immediately threatens the life or health of the patient, then the physician may extend the operation and fix the threat of the newly-discovered condition. (consent implied by law.) 2) Exception ­ Exceeding Scope: But if newly-discovered condition does not threaten the life or health of the patient, there is no consent. 3) Doctrine of Informed Consent: Patient must be informed of what the procedure entails and its reasonable risks and dangers. Failure to disclose risks is treated as negligence if damages result. (a) Example: Consent must be given to a surgical resident to perform the operation, even when supervised by the general surgeon who received initial consent. If no consent given to resident, then consent is nullified and both doctors liable. IX) SELF-DEFENSE A) Privilege: 1) Definition: is entitled to use reasonable force to defend against threatened battery or confinement, when reasonably believes the force is necessary to protect himself even if in fact there is no necessity. 2) Termination: Privilege terminates when battery is no longer threatened (no retaliation). 3) Exception: Minority of courts requires a person who is threatened to "retreat to the wall" before using self-defense. 4) Negligence: If 3rd party injured by 's negligent use of force in self-defense, liable to 3rd party for negligence. B) Degree of Force: 1) Limited: Use of force limited to that which appears reasonably necessary. 2) Disparities between parties: Differences in size / strength of opposing parties are proper considerations here. 3) Deadly Force: Deadly force justified only when there is a reasonable apprehension of imminent loss of life or great bodily injury. C) Provocation: 1) Insults/Verbal Threats: Do not justify self-defense, unless an actual threat of physical violence reasonably warrants an apprehension of an imminent battery. 2) Provocation = Consent: Oral abuse accompanied by an overt hostile act may amount to a challenge to fight which constitutes consent (so if challenges , beats the crap out of , who is injured, is not liable for 's damages because consented to it.) X) DEFENSE OF OTHERS

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A) Definition: may use reasonable force to defend `X' against attack if X would have been privileged to use the force for defense as well. B) Reasonable Mistake: 1) Traditional: Privilege extends if third-party has the right to use self-defense. 2) Modern: Privilege exists for person who reasonably believes intervention is necessary to protect the third-party. XI) DEFENSE OF PROPERTY A) Reasonable Force: Reasonable force generally allowed to defend property, both land and chattels, from intrusion, when reasonably believes force is necessary (and if demands to desist will be or were futile). B) No Deadly Force: Deadly force prohibited unless the trespasser is endangering human life by his act (self-defense). 1) Example: No spring-guns, traps, etc. C) Recovery of Chattels: Reasonable non-deadly force can be used to recover property if it can be done without unnecessary violence or a breach of the peace. 1) Limitation ­ Fresh Pursuit: Limited to when "pursuit is fresh"; i.e. the property was just taken and the owner of the property soon after pursues the thief. Any undue lapse in time removes the privilege. 2) Conditional Sale: If a sale provides that the property can be retaken if the purchaser defaults, normally the seller can retake the property as long is it can be done peacefully. (e.g. repossession of a car.) 3) Entry on Land: Complete privilege to enter land to recover if landowner at fault; if not at fault, incomplete privilege exists. D) Recovery of REAL Property: 1) Forcible Entry and Detainer: Doctrine allows rightful owner to retake possession only if it can be done without force. E) Merchants Detention: 1) Reasonable Detention: A merchant has a privilege to detain a person suspected of shoplifting/theft for a reasonable period of time and on store grounds or in immediate vicinity in order to investigate the facts. (a) Force: Reasonable force allowed short of bodily harm. (Restatement) XII) NECESSITY A) Definition: has privilege to harm property interests of where necessity exists in order to prevent great harm to third persons or to the defendant herself. B) Public Necessity (Complete ­ No Liability): In certain cases, private property rights must yield for the benefit of the public good. (i.e. destroying 's house to block the path of a fire.) 1) Property on Fire: Property on fire, or those in the immediate vicinity that can carry the flames, becomes a nuisance; the property can be destroyed and private rights of the owner yield for the interests of the public good. 2) Public Good: The public good must be threatened, not just an individual property. C) Private Necessity (Incomplete ­ Liability for Damages Caused): A person may prevent injury to himself or his property by interfering with the property rights of another, so long as there is no less-damaging way of preventing the harm. 1) Example: Ship tied to dock can't be moved because of approaching storm; storm buffets ship which damages dock; owner of ship liable for damages to dock. XIII) OTHER TYPES OF PRIVILEGE A) Arrest: 1) With Warrant: Police officer with a seemingly valid arrest warrant privileged to make an arrest as long as he acts properly. Failure to execute exact order (like arresting the wrong person / excessive force) renders the officer liable. 2) Probable Cause: Arrest without a warrant permitted if officer reasonably believes that a felony has been committed and he arrests the criminal. 3) Right to Invade Land: Included within privilege. 4) Private Citizen: Privileged to arrest without warrant if a felony has in fact been committed and there are reasonable grounds to believe the person arrested did it. B) Justification: Generally, a reasonable restraint or detention allowed for the purpose of preventing another from injuring or interfering with real or personal property in one's possession (e.g. school-bus driver restraining kids who were trashing the bus). C) Discipline: 1) Parent/Guardian: Parent or guardian has privilege to discipline their child. 2) Teachers: Privilege extended only to need to maintain reasonable order in the classroom (excessive force prohibited). NEGLIGENCE GENERALLY XIV) ELEMENTS OF NEGLIGENCE A) Elements: 1) Duty of care 2) Act or omission that breaches that duty 3) Actual & proximate causation; and 4) Damages. B) Defined: 1) Duty of Care: has a legal duty to conduct himself according to a certain standard, depending upon the circumstances.

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(a) Negligence per se: as a matter of law, the person has not acted reasonably. Act/Omission that Breaches Duty: Volitional act or omission when under affirmative duty to act. Actual & Proximate Causation. Damages: Actual loss or damage must result to or his interests. Intent: Immaterial; liability imposed for unintended/accidental effects.

XV)DUTY ­ STANDARD OF CARE A) Reasonable Person Standard: 1) Defined: An objective standard ­ everyone owes a duty to act as a reasonable person would act under same or similar circumstances. 2) Physical Characteristics: `Reasonable person' identical in terms of physical characteristics to actor. (e.g. , who is blind, is walking without a cane as he usually does and bumps into and injures him ­ negligent if it's unreasonable for him to be without his cane). 3) Mental Characteristics: General `reasonable person' has reasonable mental faculties (not anymore stupid or intelligent than the `reasonable person'). (a) Exception ­ Intoxication: Intoxicated person held to reasonable person standard. 4) Emergency Doctrine: (a) Standard of Care Reduced: In emergency, standard of care is one of a reasonable person acting within the same emergency conditions (e.g. jumping out of a car after being carjacked; car runs into building, causes damages; not liable). (b) Exceptions: (1) Normal standard if emergency is created by the actor's own negligence. (2) If its reasonable to anticipate the emergency, reasonable person would be prepared to meet it as to reasonably prevent injury. 5) Motor Vehicle Duty: (a) Defined: Standard to operate vehicle reasonably to prevent injury; includes reasonable knowledge that vehicle is in safe operating condition. (b) Automobile Guest Statutes: Minority of states have statutes providing that owner-driver not liable for any injuries received by his non-paying passenger, unless driver was grossly negligent or reckless. 6) Common Carriers: May be held to higher standard of care 7) Children: (a) Defined: Standard of care reasonably expected from children of that age & experience. (b) Exception: Reasonable person standard if child engages in inherently dangerous activity normally engaged in only by adults (e.g. operation of mechanized vehicles). 8) Insane Persons: (a) Majority: Standard of care = reasonable person. (b) Minority: not liable if injuries are caused by a sudden affliction of mental illness; BUT must not have had notice that he might be suddenly subject to it. B) Negligence Per Se ­ Violation of Statute / Regulation: 1) Defined: Breach of duty as matter of law when violation results in injury to persons intended to be protected by statute and when the harm is of the kind which the statute was enacted to prevent. (a) `Harm of the kind': The foreseeable harm which the statute was enacted to prevent; an unrelated injury lacks proximate cause and is not negligence (e.g. statute requiring driver leaving unattended vehicle to take keys; thief takes car and causes accident; no proximate link between owner and damage.) 2) Contributory Negligence: Violation of statute (e.g. not having lights on your car at night, resulting in collision) may establish 's contributory negligence ( had duty, too.) 3) Rebuttable Presumption: Violation of criminal statute not conclusive­ just a prima facie case. Rebuttable by legally sufficient excuse. If successful, standard of care becomes reasonable person. C) Custom (not conclusive): 1) Customary Practice = Standard of Care: Admissible as evidence of standard of care. (a) Exception: Customary practice may be unreasonable as determined by a reasonable person. D) Compliance with Statute: Not conclusive, but violation may be negligence per se. E) Reasonable Anticipation of Negligence: 1) Defined: expected to reasonably anticipate the possibility of negligence committed by (e.g. reasonable to expect not to always use his turn signal / follow the speed limit). 2) Criminal Acts: not required to anticipate criminal acts / intentional torts by . (a) Exception: If has special knowledge that may be dangerous, may have a duty to warn 's targets of the danger. F) Professional Standards: 1) Reasonable Professional Person: Standard = the knowledge, training, and skill of an ordinary member of the profession in good standing.

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G)

XVI) A) B)

C)

XVII) A)

2) Specialists: Standard of care of specialists may exceed that of the general practitioner. 3) Attorney Malpractice: (a) No Duty to Predict Change in Law: No duty for points of law unsettled by highest court. (b) Examples: (1) Attorney liable for letting statute of limitations run before filing claim. (2) Attorney not liable for drafting will violating rule against perpetuities and restraint against alienation (generally confusing topics). 4) Medical Malpractice: (a) Duty (Court Split): (1) National Rule: Standard = reasonable conduct of other doctors nationally. (2) Locality Rule: Standard = Conduct of other doctors in the same locality (protected rural doctors against higher standards of care expected from urban doctors). Same & similar localities also popular. (b) Expert Testimony: Generally required in medical malpractice cases. (c) Doctrine of Informed Consent: (1) Elements: (i) Doctor required to inform patient of material risks of proposed treatment; (ii) If failure to disclose risks results in injuries from those unknown risks, and if patient would not have consented to treatment if she had known of risks, then doctor is liable. (2) Consent Defective: If doctrine ignored, patient's consent is vitiated and doctor is liable for injuries, even if there is no malpractice. (3) Fiduciary Duty: If doctor has other interests in a treatment, such as financial or research incentives, he has duty to disclose that information to the patient. To Whom is Duty Owed?: 1) Foreseeable : Generally, a duty is owed to any foreseeable , or class of persons in the "zone of danger". (a) Exception ­ 3rd Parties: may have duty to prevent harm caused by 3rd party. (1) Examples: (i) controls dangerous substances (e.g. gas station owner sells gas to kid; liable for burned playmates.) (ii) encourages dangerous acts (e.g. radio station liable for speeding teenager trying to catch a traveling disk jockey.) 2) Unforeseeable : Generally, no duty owed. (a) Exception ­ Rescue Doctrine: (1) Defined: Injured rescuer can sue who caused the danger requiring the rescue. Foreseeable that rescuer will come to aid of person injured by 's actions; accordingly, owes rescuer similar duty that was owed to the person he imperiled. (2) Elements: (i) 's negligence caused the peril to the person needing rescue; (ii) The peril was imminent; (iii) A reasonably prudent person would conclude the peril existed; and (iv) Rescuer acted with reasonable care in effectuating the rescue. (3) Assumption of Risk N/A: Cannot be invoked here. (4) Strict Liability: Also applies in strict liability cases (Suzuki Samurai rolls ­ Suzuki liable to rescuer of the injured driver through product liability). (5) Exception ­ Professional Rescuers: Doesn't apply to professional rescuers ­ police officers, firemen, etc. BREACH OF DUTY / RES IPSA LOQUITUR PROVING BREACH Defined: Conduct falling short of duty owed (i.e. exposing others to unreasonable risk of harm.) Aggravated Negligence: 1) Willful, Wanton, and Reckless Conduct: Breach of a duty so egregious that it's either willful, wanton, or reckless (think fool, damned fool, and a God-damned fool). This level of conduct is the threshold for punitive damages in many courts. Notice (Unsafe Conditions): must have notice of unsafe conditions to be held liable for resulting injury. 1) Actual Notice: knows of an unreasonably unsafe condition which is likely to cause injury. (a) Example: Customers customarily eat pizza standing over a floor ( even makes efforts to clean it up periodically). Reasonable to assume food would drop to the floor. knew or should've known. 2) Constructive Notice: If has reasonable time to correct an unsafe condition but doesn't, should have known it existed. . (a) Example: If condition of banana peel suggests that it had been on a train platform for some time, then under constructive notice. obligated to keep station reasonably safe for its passengers. RES IPSA LOQUITUR ("the thing speaks for itself"): Definition: The fact of the accident having occurred is evidence of negligence. When something happens that normally wouldn't happen unless someone has been negligent, then res ipsa applies. (serves as rule of evidence.)

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B) Balancing Test: 1) Defined: In situation where risk of harm is reasonably foreseeable, the risk is unreasonable and the act negligent unless the utility of the act outweighs the magnitude of the risk (public benefit). 2) Ordinary Care: If a lawful act results in injury but the act was done with ordinary care and injury resulted unintentionally, than the tortfeasor is not liable. Brown v. Kendall (accidentally hit a bystander with cane while striking at fighting dogs) C) Elements: must prove: (a) Accident Generally Wouldn't Occur: There was an accident that generally would not occur except for somebody's negligence (attributing it to ); (b) Exclusive Control of : The thing causing the accident was under the exclusive control of at time of and immediately prior to the accident; (c) No Interference: or a 3rd party did not contribute to or cause the accident. D) Effect: 1) Inference (majority): Warrants an inference of negligence. 2) Presumption: Raises a presumption of negligence, requiring to rebut it. 3) Burden of Proof: Shifts ultimate burden of proof to , requiring him to prove beyond a preponderance of the evidence that he's not liable. E) Exclusive Control of Multiple s: If there are two or more defendants, and can show that at least one of the s was in exclusive control, may still recover, especially where all of the s participate together in an integrated relationship (e.g. group of physicians/nurses where each had contact with unconscious patient who is injured; each individual is liable. The joint s must work out their respective liabilities on their own. F) Examples: 1) Flour barrel rolling out of warehouse onto a person's head. 2) Spare tire of truck comes out of cradle and hits a car. 3) Car leaving highway and overturning or crashing into stationary object. CAUSATION XVIII) CAUSATION IN FACT A) "But for" Test: would not have been injured but for 's act. 's act need not be the sole cause. 1) Nexus: Conduct not cause in fact if the event would have occurred without it. (Nexus between actual act & injury sustained.) B) Concurrent Causes: 1) Separate Acts: When separate acts of negligence concur and would not have been injured but for the concurrence, both negligent actors liable. (e.g. leaves truck on highway w/o lights on; crashes into it. Both liable). 2) Substantial Factor: Actor's negligence must be substantial factor in causing damage. (e.g. starts fire, which joins another fire, and burns 's property ­ liable only if his fire substantially caused the damage.) 3) Distinguish from Jointly Engaged Tortfeasors: If several s jointly engage in negligent conduct, each is liable even though only of them caused the injury. C) Which Party Caused the Harm?: 1) Multiple Fault: If two or more s were at fault, but only one could have caused injuries, onus is upon s to show the other caused the harm, otherwise s jointly liable. (e.g. two hunters, shoot into the woods, catches shot in the eye ­ both s liable.) 2) Market Share Liability: When a group of manufacturer s produce a drug which causes injuries, but the specific that made the actual pill which injured cannot be individually identified, then each is liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the pill which injured . ( is better able to bear cost of injury than .) (only CA and 5 other courts that followed lead used this method for the DES drug; rarely used; must bring enough s to represent a "substantial share" of the market.) D) Proof of Causation: must produce evidence that produces a reasonable inference indicating that 's negligent conduct caused the injuries. 1) Expert Testimony: When expert testimony conclusively indicates 's negligence cannot be the cause of 's injuries, then as a matter of law is not liable. XIX) PROXIMATE CAUSE A) Defined: Serves as policy decision as to who should bear the loss for unexpected injuries or for expected injuries caused in unexpected ways. Focuses on foreseeability. (courts also consider extent of liability/litigation.) B) Direct Causation: Generally, any cause which, in a natural and continuous sequence, unbroken by an intervening act, causes the damages complained of and but for the result would not have occurred, satisfies proximate cause. 1) Takes As He Finds Him: may be liable for damages to for aggravating 's pre-existing illness. (e.g. suffers psychotic episode after minor car accident; liable for damages from accident AND psychotic episode.) 2) Expanded Damages: liable for results of his act which follow in unbroken sequence, without an intervening act, as long as results are foreseeable (e.g. negligently backed into building, severing gas line, which exploded and destroyed building; liable for entire building.) C) Indirect Causation:

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1) Dependent Intervening Force: If intervening force is a normal or foreseeable result of 's negligent act, is liable. (Courts will often stretch proximate cause to fit it around certain intervening causes in order to provide justice.) 2) Intervening Criminal Act: Generally, criminal acts by others are not foreseeable, and are an intervening act; but if a condition exists that could reasonably be foreseen as a danger if a criminal does something with it and causes injury, proximate cause may still be established. 3) Forces of Nature: Often, but not necessarily an intervening act (e.g. strong wind blows in a roof, but roof was negligently made / poorly maintained; builder/owner owner of roof still liable.) 4) Special Cases: (a) Insanity Resulting: liable for suicide of a tortiously injured person driven "insane" as a result of 's negligence. ("Irresistible impulse" case ­ kills himself after car accident with ; unaware of what he was doing; liable.) (b) Weakened Condition: If suffers secondary injuries resulting from the weakened condition caused by the first injury from 's negligence, liable for the secondary injuries. D) Independent Intervening Force: 1) Defined: Force that operates upon situation created by 's act but is not a response or reaction (e.g. act of third person, God, etc.). remains liable for foreseeable results of his act (not foreseeable = intentionally tortious or criminal acts (as long as not foreseeable). (e.g. landlord fails to install locks on common areas in high crime area; tenant injured by intervening criminal act; causal nexus not broken and liable. 2) Examples: (a) Medical Treatment: Negligent treatment in response to 's injury to is foreseeable. (b) Rescue Forces: Infliction or aggravation of injury to by rescuer is foreseeable. (c) Escape: Infliction or aggravation of injury through escape efforts is foreseeable. (1) Note: Response must be normal, otherwise intervening act breaks causal nexus. E) Exceptions: 1) Intervening Act: If intervening act is extraordinary under circumstances and not foreseeable in the normal course of events, or independent of or far removed from 's conduct, the intervening act breaks the causal nexus, and not liable. 2) No Remote Causation: Actor not liable for remote damages. (e.g. causes fire in structure which burns it; liable; but if fire spreads to his neighbor's house, he is not liable due to intervening causes like wind, material of house, etc.) (a) Walsh: if weather patterns are normal and the house next door burns, should be liable. 3) Social Host Liability: Proximate cause extended liability over when it would benefit public policy ( injured by 's friend who got drunk at 's house; let his friend drive home; the friend crashes into ; liable.) (court division here ­ some courts allow their legislatures to go at it.) (a) If serves booze to a minor and minor gets in an accident, is negligent straight up. 4) Entrustment: Lending/selling a car or firearms (dangerous things) to someone who then gets into an accident may render you liable. F) Ultimate Result: Ultimate decision on proximate cause depends on degree of foreseeability. JOINT TORTFEASORS XX)JOINT AND SEVERAL LIABILITY A) Defined: When two or more s are proximate causes of 's harm, and the harm cannot be apportioned among the s, each is jointly and severally liable for the entire harm. can collect from any one of them or as a group (but not more than once). B) Apportioning Damages: 1) Acting in Concert: When two or more 's act in concert and their actions result in 's injuries, all s are j/s liable. (e.g. two s drag-racing; one collides with & injured. Both 's jointly and severally liable.) 2) Indivisible Injuries: (a) Death or single injuries. (b) Fires (e.g. fire set by two s, acting in concert or separately; damage unapportionable). (c) Successive Injuries: Harm generally apportionable if occurring in successive incidents, separated by substantial periods of time. (d) Overlapping Injuries: When injuries overlap, 1 may be liable for entire injury, while 2 is only liable for the specific harm caused by his individual act (e.g. 1 breaks 's arm; 2 negligently sets it, leading to amputation; 1 liable for entire damage; 2 only liable for difference between broken arm and amputated arm). C) Exceptions: 1) Satisfaction Rule: Once receives full judgment, satisfaction occurs and cannot recover further from other s. 2) Release: (a) Traditionally: "A release of one tortfeasor is a release of all tortfeasors." (b) Modern: Agreement can be written as covenant not to sue and not a technical release, thus avoiding the old rule. 3) Contribution (only necessary alongside J&S liability.) (a) Application: Only applicable for negligence damages; not punitive. (b) Defined: For s j/s liable, 1 may recover from 2 if 1 pays more than his pro rata share of the full judgment.

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(c) Generally: As a general rule, each joint-and-several required to pay equal share. (d) Purpose: Prevents from pursuing only those wants to sue; allowed to bring in other s also liable for damages. (e) Settlement and Release: A release settlement made in good faith protects the settled parties from further contribution. Lack of good faith indicated by collusion, fraud, dishonesty, or other wrongful conduct. (f) No Intentional Torts: Contribution not allowed under intentional tort. (g) No Immunities: Immunities (like inter-spousal) cannot protect a person from liability under contribution. XXI) INDEMNITY A) Defined: A who is exposed to judgment resulting from negligence of another can receive indemnity from the other party. The other party will then be liable for the entire amount of the judgment, including reasonable attorney's fees. 1) Limitation: Only allowed when indemnitee does not join in the negligent act. B) Application: Indemnity doctrine serves employers liable for employee's liability; retailers for manufacturer's liability, etc. 1) Respondeat Superior: Employer indemnifies employee. 2) Product Liability: Manufacturer indemnifies retailer/distributor. SPECIAL DUTY OF CARE ISSUES XXII) GENERAL APPLICATIONS A) Failure to Act: 1) Generally: generally has no duty to aid a stranger when not at fault. 2) Voluntary Act: If voluntarily undertakes to aid , must exercise due care. 3) Exceptions: (a) Business Premises: One who maintains a business premise must furnish warnings & assistance to business visitors. (b) Peril Caused by : When peril is caused by actions of , or is under control of the device causing the peril, has a duty to aid . (c) Injury Caused by : has duty to aid . (d) Duty to Go Forward: If 's conduct has gone forward to a stage where inaction would result in an injury, a duty exists to continue. (e) Known or Foreseeable Dangers: When is aware or can reasonably foresee that X poses a threat to , has a duty to warn . (1) Psychiatrist Warning of Violence: When a psychiatrist has reasonable belief that a patient poses a serious danger to another, the psychiatrist has a duty to use reasonable care to protect the foreseeable victim by warning or otherwise. (2) Sexual Predators: aware of X's sexually abusive behavior against teenage girls; knows that X is in the company of , a teenage girl; has duty to take reasonable steps to prevent or warn against the sexual abuse. liable to for 's resulting injuries. B) Mental Disturbance and Resulting Physical Injury: (NOT IIMD) 1) Defined: Duty not to subject others to a foreseeable risk of physical injury, through physical impact or otherwise, that might result in emotional distress and consequent physical injuries. (a) Traditional: Actual impact required to prove breach. (b) Modern: Threat of impact is sufficient. (c) Member of Family: Closely-related, present family member who suffers direct emotional impact can also recover. 2) Mental Injury & Resulting Physical Injury: allowed to recover for both. 3) Mental Injury, but No Physical Symptoms: (a) Majority: generally not allowed to recovery. (b) Minority: sometimes allows recovery in special, egregious cases. C) Privity of Contract Issues: 1) Nonfeasance: Damages resulting from breach of K; K law controls. 2) Misfeasance: Damages result from negligent performance of K; tort law controls. 3) Third-Party Beneficiary: Professional may be liable for negligence to a third person who would be benefited by his performance irrespective of privity (no duty exists if it would result in a conflict of interest.) XXIII) UNBORN CHILDREN A) Child Born Live: Allowed to recover for injuries sustained while in utero. B) hild Not Born Alive: No wrongful death action; unborn fetus does not have separate "juridical existence" (legal personality or identity) until after birth. C) Wrongful Life: 1) Medical Expenses: When injuries (life) caused by 's negligence, child or parents can recover special damages for extraordinary medical expenses incurred during infancy, and child can further recover for medical expenses during his life. 2) No Suffering: However, child cannot recover for suffering resulting from "wrongful life" claim.

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3) Example: Doctor failed to inform of measles risk of deformed kid; kid born deformed; mother wouldn't have had him if she knew the risk; allowed "wrongful life." OWNERS AND OCCUPIERS OF LAND XXIV) OUTSIDE THE PREMISES A) Reasonable Duty Standard: Duty of care exists to prevent injuries to those passing by on the outside of his premises. (e.g. fixing/repairing any dangerous conditions of which has reasonable notice.) B) Natural Hazards: 1) Rural: generally does not have a duty to protect against a natural hazardous condition. (a) Change of natural conditions: But once changes the natural conditions on his property, he may be responsible for all natural conditions upon that property. 2) Urban: Natural conditions (trees, rocks, etc.) must be reasonably maintained. C) Public Passer-bys: Abutting landowners have a duty to protect passer-bys from dangerous conditions upon or coming from their property (e.g. baseballs flying out of a stadium). XXV) ON THE PREMISES A) Trespassers: 1) Generally: has no duty to trespassers without reasonable notice of the trespass. 2) Exceptions: (a) Constructive Notice: has constructive notice when trespassers habitually pass by or cross over an area of its property; then has a duty. (b) Actual Notice: If has actual knowledge of a trespasser, has a duty to exercise reasonable care for the trespasser's safety. (c) Children: has a duty to protect children against an "attractive nuisance", infra. B) Attractive Nuisance: Real property owner has a duty to protect children (even when trespassing) from injury from something upon the land that might `attract' the children to it and is likely to cause them injury (e.g. railroad turntable left unlocked). 1) Burden to Make Safe: Owner need only take reasonable steps to lessen the danger without imposing an unreasonable cost. (unreasonable = safety alterations are prohibitively expensive and may affect the public benefit from the product.) XXVI) LICENSEES A) Defined: Social guest upon property by owner permission for licensee's own purposes. B) Duty: Licensee generally takes the premises of the host as they are; however, host has a duty to warn icensee of any hidden dangers known to the host and unknown to the guest, and to refrain from injuring the guest willfully or wantonly. C) Two types of licensees: 1) Ordinary Licensee: an invited social guest; 2) Bare Licensee: an uninvited social guest, trespasser, or salesperson ­ standard of care less here than for ordinary licensee. XXVII) INVITEES A) Defined: Business guest upon land in furtherance of owner's business. B) Duty to Invitees: Property owner has duty to exercise reasonable care in keeping the premises reasonably safe for use by invitee. (greater than with licensee.) 1) `Reasonable care': affirmative action to obviate an unreasonably dangerous condition required; merely warning of the danger is insufficient. C) Special Cases: 1) Customers: Classified as invitees, whether purchasing or browsing. But if on a personal errand of their own interest, classified as licensees. 2) Invitee Expiration: Invitee allowed upon property for reasonable time to accomplish the business; after a reasonable time, invitee changes to a licensee or trespasser, depending upon owner consent. 3) Beyond Invitee Territory: If invitee goes beyond the part of the premises to which the invitation extends, then his status changes to licensee or trespasser, depending upon owner consent. 4) Sanitary/Safety Inspectors: classified as invitees (there for a purpose of 's business which couldn't continue without inspection). 5) Firemen/Policemen: No more than licensees; they have a bare license conferred by law but no extra rights. D) Merging of Invitee/Licensee Categories: 1) CA & NY Rule: CA merged the invitee/licensee categories; "reasonable person" standard applies to both. XXVIII) LESSOR & LESSEE A) Lessee Duties: As possessor of land, lessee has duty to maintain premises in a reasonably safe condition to protect those coming upon the land. B) Lessor Duties: 1) Generally: Lessor not liable once possession has been transferred. 2) Exceptions: Lessor has a duty in the following situations:

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(a) Known to Lessor, unknown to lessee: Undisclosed dangerous conditions known to lessor and unknown to lessee (i.e. floor rotted out); (b) Outside Premises: Conditions dangerous to persons outside of premises (if lessor in control of exterior walls); (c) Public/Common Areas: hallways, staircases, driveways, etc. (d) Open to the Public: If lessor believes lessee intends to open up property to the public, lessor has duty to make the property reasonably safe before the lease beginning; (e) Contracts to repair: Areas where lessor has contracted to repair; (f) Negligence by lessor: Any negligence by lessor in making repairs. 3) Security of Property: In high crime areas, lessor has a duty to take reasonable steps to minimize the risk of the criminal acts in common areas. DAMAGES XXIX) DAMAGES A) Damage Chart: Type Nominal General Special Compensatory Punitive Defined Small $$ to vindicate rights; make judgment matter of record (in case of trespass to avoid adverse activity). Inherent to injury itself; includes (1) pain and suffering (past, present, & future); (2) disability and disfigurement; (3) loss of enjoyment of life; (4) reduced life expectancy. Economic losses & expenses; includes (1) past & future medical expenses; (2) lost wages and earnings; (3) repair bills. Broader category including General & Special damages. Awarded to penalize when conduct was particularly outrageous/malicious. Only available in negligence for reckless or willful & wanton conduct. Intent.? YES YES YES YES YES Neglig.? NO YES YES YES MAYBE

B) Limitations on Damages: 1) Maximum Recovery Rule: If trial judge determines jury verdict exceeds maximum amount which jury could reasonably find, then trial judge may reduce damage award to the highest amount that jury could properly have awarded. 2) Collateral-Source Rule: Evidence of payments received by an injured party from sources `collateral' to the wrongdoer, such as private insurance or government benefits, are excluded. Why?: Recoveries from collateral sources will not benefit the tortfeasor, even if it means a windfall for the plaintiff. 3) Mitigation of Damages: is required to mitigate her damages by submitting to medical care when a reasonable person would do so; cannot recover for injuries or worsened condition from failure to mitigate. 4) Excessive Punitive Damages: Due Process (14th Amendment) prohibits excessive punitive damage awards. XXX) WRONGFUL DEATH AND SURVIVAL DAMAGES A) Wrongful Death Damages: (statutory remedy; common-law barred recovery) 1) Defined: Certain persons may recover for losses related to decedent's death. 2) Only Surviving Relatives: Spouse, children, or parents can only recover. Unmarried cohabitants don't count. 3) Pecuniary Damages Only: Permits recovery only of pecuniary damages (loss of consortium, economic/mental support, services, and contribution. 4) Minor Child: Recoverable damages include loss of consortium, comfort, and companionship of child. 5) No Punitive: Punitive damages not recoverable. 6) Defenses: Same as negligence ­ contributory negligence, assumption of risk, etc. B) Survival of Tort: (also statutory ­ no common law) 1) Defined: Recovery allowed for personal injuries and property damage incurred up to time of death; includes pain and suffering, lost earnings prior to death, actual medical expenses, etc. Same as if individual was still alive, but $$ goes to estate. (a) Instantaneous Death: No recovery under survival, since all damages incurred on account of or after death. (recovery still possible under wrongful death, supra.) 2) Pain and Suffering of decedent: Courts split ­ majority allow recovery if decedent conscious for a period of time (in order to suffer). 3) No Punitive: Punitive damages not recoverable.

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DEFENSES TO NEGLIGENCE XXXI) CONTRIBUTORY NEGLIGENCE (Minority) A) Defined: A liable for contributory negligence is barred from recovery of all damages resulting from 's negligence. B) Elements: 1) Conduct on part of plaintiff 2) that is a contributing proximate cause to his own injuries 3) and which falls below a reasonable standard required for his own protection. C) Intentional/Reckless N/A: Doesn't apply to intentional or reckless/wanton torts. D) Violation of Statue: Contributory negligence applies if violated a statute generally designed for public protection, unless is a jmember of a special class sought to be protected by the statute. E) Last Clear Chance Doctrine: 1) Elements: 's contributory negligence doesn't bar recovery if: (a) 's negligence has come to rest; and (b) immediately prior to accident, had `last clear chance' to avoid accident, (c) but failed to do so. F) Imputed Contributory Negligence: 1) Defined: may not recover for damages when `X' is liable for contributory negligence resulting from the damages, and is vicariously liable to `X' under respondeat superior. 2) Limitations: Applies only in states where contributory negligence is recognized. XXXII) COMPARATIVE NEGLIGENCE (MAJORITY SYSTEM) A) Defined: Liability divided between and in proportion to relative degrees of fault. Recovery reduced by proportion equal to the ratio between 's own negligence and the total negligence contributing to the accident. B) Pure vs. Partial: 1) Partial Rule (Majority): can recover as long as his fault doesn't equal or exceed 49% or 50%, depending on the jurisdiction. 2) Pure Rule (Minority): can recover in proportion to the percentage negligence attributed to him (i.e. is 90% at fault; recovers 10% of damages) C) Multiple s: can still recover under partial if his fault doesn't exceed (1) any of 's fault or 2) an aggregate of all of 's fault, depending on jurisdiction. D) Last Clear Chance Abolished: Comparative negligence kills `last clear chance' doctrine. E) Joint and Several Liability Abolished: Conflicts with comparative negligence. F) Intentional Tort N/A: Doesn't apply to intentional tort, but can apply to reckless/wanton negligence. XXXIII) ASSUMPTION OF RISK A) Elements: 1) If voluntarily consented, either expressly or impliedly, to a known danger created by , 2) recognized and understood the risk, and 3) voluntarily chose to encounter the risk, 4) then is barred from recovery if thereby injured. B) Express Assumption (Exculpatory Clauses): 1) Explicit Consent: Satisfied by express or written consent by . (K provision). 2) Void by Public Policy: (a) Unequal Bargaining Power: If performs an important public service which is a practical necessity for the public (utility provider), assumption of risk is usually held to be void. Safety statute enacted for the particular activity, a private individual who is part of the class that the statute is intended to protect cannot assume the risk. 3) Intentional or Reckless N/A: Exculpatory clause void if tort was intentional or reckless. C) Implied Assumption: 1) Implied Consent: Assumption of the risk implied through 's conduct. 2) Elements: (a) must be aware of particular risk and (b) must voluntary choose to encounter it in the particular setting. (c) Knowledge of danger & risk are measured subjectively, by what was personally aware of and intended, not by reasonable person standard. XXXIV) STATUTE OF LIMITATIONS AND REPOSE A) Statute of Limitations: Limits time during which a c/a can be brought: 1) Date of Injury: Some states start clock at the date of injury. 2) Tolling: Some states start clock at the date of discovery of injury (toll the statute). (a) Frequently used for medical malpractice cases. B) Repose: After the statute of limitations has run, has benefit of repose; cannot be sued for particular torts and can plan the future accordingly. XXXV) IMMUNITIES

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A) Effect: If immune, has still committed a tort, but cannot recover. B) Inter-spousal Rule (Archaic ­ abolished in most states.): 1) Definition: Husband and wife considered a single entity; accordingly, the two can't sue each other for personal injury torts. 2) Why?: preserve peace & tranquility of home; keep matrimonial disputes out of court. 3) Exceptions: N/A under respondeat superior ­ wife can sue husband's boss. C) Parent-Child Immunity (most courts restricting or rejecting): 1) Definition: Child may not sue parent for personal torts. 2) Why?: Protects internal harmony and integrity of family unit. 3) Exceptions: (a) Cruel/Inhuman Treatment: Minor child can sue parent for injuries resulting from cruel and inhuman treatment or for malicious and wanton behavior. (b) Intentional: Intentional torts allowed in most courts. D) Charities: 1) Modern: Nongovernmental charitable institutions liable for its own negligence and negligence of its agents/employees acting within scope of employment. Recovery outweighs charitable function. 2) Traditional: Charitable institutions were immune from negligence, based on possible deprivation of their services if the institutions had to answer to liability. E) Worker's Compensation (Employer) (statutory): 1) No Fault: Employees can recover for job-related injuries without having to prove fault of the employer. However, in turn, the employer receives immunity from any tort liability resulting from the injury. F) State and Local Governments: 1) Modern: Many states have abolished state/local government immunity. 2) Traditional: "The King could do no wrong" ­ immunity for the king extended into the municipalities. 3) Why? Better to spread burden of damages over the community rather than for to bear alone; rejected reasons for past immunity doctrine. 4) Proprietary v. Governmental: Some jurisdictions limit tort liability to only "proprietary" functions of municipal governments; immunity available for all "governmental" functions. (a) Proprietary: Those functions that the city performs, but could be provided by a private corporation, like utilities, public halls, etc. (b) Governmental: Those functions that can be performed adequately only by the governments (police, fire, courts, etc.) 5) Police Duties: Special duty exists by police to plaintiffs who reasonably rely to their detriment on assurances of police protection (e.g. police say they're coming, they never show up, and the robber kills you). (a) Other Duties: Also owed to informers, undercover agents, those under special court protection, and schoolchildren through crossing guards. VICARIOUS LIABILITY XXXVI) RESPONDEAT SUPERIOR A) Definition: Employer is vicariously liable for tortious acts (intentional or negligent) committed by his employee within the scope of his employment. (a) Exception: If employee commits intentional tort for personal motives, employer released from liability. B) Scope of Employment: 1) General Rule: When employee is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, either directly / indirectly, over employee's activities. 2) Cardozo Rule: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own (i.e. driving home, going to visit family, etc.) 3) Enterprise Theory: Employer liable whenever the enterprise of the employer would have benefited by the context of the act of the employee but for the unfortunate injury. C) Exceptions: 1) Driving to or from work: Employee driving to or from work is not within scope. (a) Exception: Employee using his car in furtherance of his work is under employer's control from the point he leaves his house to the point he returns home 2) Employee's Immunity Immaterial: Even if employee is immune from liability (i.e. interspousal immunity), the employer can still be liable under respondeat superior. D) Damages: 1) Compensatory: Recoverable. 2) Punitive: Only if employer authorized/ratified act, or if agent was acting in managerial capacity, or if employer was reckless in employing agent. E) Other Employer Torts: 1) Failure to control employee's acts: Employer has a duty to control the conduct of employees within his presence.

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2) Negligent hiring of employee: an employer may be liable for willful or criminal acts of an employee if the employer should reasonably have foreseen such tortious action by the employee (even if outside the scope of employment). F) Independent Contractors: 1) Definition: One engaged to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result. 2) Respondeat Superior: Does not apply for independent contractors. 3) Nondelegable Duty: Employer may be liable for hiring independent contractor to perform nondelegable duties (i.e. something which threatens a grave risk of injury if not carefully maintained), and an injury results from the contractor's negligence. (a) Effect: Doesn't shield independent contractor from liability; but does open up indemnification. (b) Examples: Automobiles, public premises for business visitors, and health care providers included under this rule. 4) Primary Negligence: Negligence lies if hires an independent contractor that could foreseeably create a dangerous condition or who engages in dangerous practices. STRICT LIABILITY XXXVII) STRICT LIABILITY A) Definition: liable for damage even though no intentional act or negligence. B) Scope of Risk: Strict liability exists only for damage resulting from the kind of risk that made the activity abnormally dangerous. (i.e. truck carrying dynamite only strictly liable if it explodes, not if it causes a car accident.) C) Dangerous Animals: 1) Animals: (a) Livestock: Possessor of livestock trespassing on land/chattels of another is strictly liable for the trespass and any harm done. (but not household pets.) (b) Wild Animals: Owner or possessor of a wild animal is subject to strict liability if the animal injures anyone. (but if animal kept pursuant to public duty (e.g. in a zoo), strict liability does not apply.) 2) Domestic Animals: Owner/possessor strictly liable only if owner knew or had reason to know that the animal had vicious propensities. (a) Exception: If animal is of a type that has a normal dangerous propensity (like a bull), strict liability does not apply. 3) Persons Protected on 's premises: Invitees and licensees, but not trespasser (but landowner must warn of vicious watchdogs.) D) Abnormally Dangerous Activities: 1) Defined: subject to strict liability if he maintains an abnormally dangerous condition or activity on his premises or engages in an activity that presents an unavoidable risk of harm to the person or property of others. 2) Included Activities: "Ultrahazardous" activities, i.e. blasting, explosives, drilling oil wells, fumigation, fireworks. E) Foreseeable Duty: 1) To Plaintiff: duty owed only to foreseeable plaintiffs, i.e. persons to whom a reasonable person would have foreseen a risk of harm in the circumstances. 2) To Hazards: Harm that results must be foreseeable from the abnormally dangerous animal or activity (e.g. minks killing young after blasting fright; not foreseeable.) F) Actual and Proximate Cause Required: same rules as negligence. 1) Act of God: generally an intervening act, just like in negligence. G) Defenses: 1) Contributory Negligence: No Defense. 2) Comparative Negligence: can be used to reduce 's recovery. 3) Assumption of Risk: Valid defense. (a) Implied: Consent to risk implied to bar strict liability where acted for 's benefit. PRODUCTS LIABILITY XXXVIII) BASICS ON PRODUCT LIABILITY A) Three possible ways to recovery: 1) Fraud ­ Intentional Tort (look into misrepresentation elements) 2) Negligence 3) Strict Liability (easiest to prove). B) Modern Rule: If the nature of a product is reasonably certain to be dangerous when negligently made, and it's known that the product will be used in the same condition it's sold, the manufacturer has a duty to all foreseeable users regardless of privity. C) Traditional Rule: liable only for injuries sustained to if within privity of K with . D) Hot and Cold Negligence: 1) Hot Negligence: Negligence shows did something wrong. Gets better damages. 2) Cold Strict Liability: Strict liability just indicates product was technically defective. E) Res Ipsa: Frequently applied for defective products.

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XXXIX) MODERN VIEW ­ STRICT LIABILITY A) Definition: One who sells any product in a defective condition unreasonably dangerous to the consumer or to his property is subject to strict liability for physical harm or property damage caused to the ultimate user or consumer, or to his property, if 1) Seller is engaged in the business of selling such a product, and 2) it reaches the consumer without substantial change in condition in which it is sold. B) Policy: Liability without fault imposed due to grave risk of harm in placing defective products in the "stream of commerce". C) Proof: 1) Question of Proof: Defect of product must exist when it left 's control or defect existed at the time it was marketed by . (defect must've been caused by .) 2) Causation: Defect must be direct and proximate cause of the accident & injuries. (a) Substantial Factor: enough that defect was substantial factor in causing injury. XL) BREACH OF WARRANTY A) Basics: 1) Based on Breach of Contract: If product is defective and warranty is breached, then effect of breach holds manufacturer liable (like strict liability). 2) Negligence Unnecessary: Negligence need not be proved ( represented glass was shatter-proof, it was not; can recover.) 3) Disclaimers Not Allowed: Limitation of recovery for consequential damages for injury is unconscionable. 4) Damages: Purely economic loss is recoverable (i.e. loss of use of product). B) Warranties: 1) Express: Whatever seller represents to seller about the product involved may be an express warranty. 2) Implied: An assurance (implied in law) from seller to buyer that product purchased will do no harm in normal use. C) UCC Provisions: 1) Fitness for particular use: If seller knows or has reason to know that buyer is purchasing goods for particular purpose and is relying on seller's skill or judgment in supplying appropriate goods, there is an implied warranty that the goods sold are in fact fit for that purpose. 2) Merchantability: If goods are supplied by a merchant, a warranty is implied that they are generally fit for ordinary purposes. XLI) SCOPE OF LIABILITY A) Any Seller of Chattels: 1) Manufacturer: Strictly liable whether produced whole part or just significant component. 2) Wholesaler: Strict liability imposed even when packaged product passed unopened. 3) Retailers/Distributors: Shares strict liability risk with manufacturer. (a) Limitation: ­ if retailer has no reason to know product may be dangerous in normal use, then dealer has no duty to inspect or test chattels. (b) Exception: If dealer knows of danger and sells goods anyway without warning consumer, then manufacturer relieved from liability. 4) Lessors/Bailors of Chattels: Commercial lessors subject to strict liability. 5) Policy: Liability arises from 's integral role in the overall producing/marketing enterprise ­ affords additional incentive to safety. B) Used Seller: Many states reluctant to hold seller of used products liable. But if safety defects attributable to design/manufacture conflict with purchaser's reasonable expectations, then liability may exist. 1) Court Split: Some courts bar liability when product sold "as is". C) Builder of Real Property: strict liability through warranty (implied warranty of habitability). D) Provider of Services: 1) Not Applicable: Strict liability does not apply to provider of services. (a) Exception ­ Guarantee: If guarantee is offered, strict liability may apply. 2) Provider of Services & Product: If provides both, dominant aspect controls. 3) Use of product in providing services: e.g. hospital supplying pacemaker ­ hospital not in the business of supplying pacemakers and cannot be held strictly liable for providing defective products. 4) Blood banks: Exempt in all jurisdictions, usually by statute. E) Indemnity & contribution: applicable ­ retailer entitled to indemnity or full reimbursement from manufacturer, unless retailer also was negligent. XLII) MANUFACTURING AND DESIGN DEFECTS A) Manufacturing Defect (Strict Liability): 1) Definition: Product not in condition that manufacturer intended at time it left its control. 2) Res Ipsa: Res ipsa can be invoked by showing manufacturing defect is kind that does not usually occur in absence of negligence of manufacturer. B) Design Defect (Strict Liability or Negligence):

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XLIII) A)

B)

C) D) E)

F)

XLIV) A) B) C) XLV) A)

B)

1) Definition: Product was in condition that manufacturer intended, but was designed in such a way that it presented an undue risk of harm in normal use. 2) Alternative Feasible Design: Possibility must exist that could've removed the danger without serious adverse impact on product's utility and price. 3) Unavoidably Unsafe Products: Product, such as handguns, that function as intended and are dangerous in ordinary use have no defect and do not give rise to liability. 4) Crashworthiness: Liability may exist for failure to design a product to minimize foreseeable harm caused by other parties/conditions (e.g. auto design). 5) Tests for Design Defect Cases (States use one or both tests): (a) Risk Utility Balancing Tests: Could have removed danger without serious adverse impact on the product's utility and price. (Q for jury.) (b) Consumer Expectations Test: must prove that the product did not perform as safely as an ordinary consumer would have expected. PRODUCT WARNINGS Inadequate Warnings: 1) Definition: Inadequate warnings may make a product defective when dangers are not apparent to consumers and users. 2) Unexpected Danger: Must be unexpected; something that a reasonable user would have no reason to expect or anticipate in the product. 3) Allergic reactions: Duty imposed if manufacturer knows or has reason to know of possible adverse allergic reactions. 4) nd-User: Must receive warning of danger. Knowledge of Danger is Required: 1) State-of-the-Art Evidence: Manufacturer not liable if the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture or distribution. (a) Example: Anderson v. Owens-Corning Fiberglas Corp. (1991): did not know of danger of asbestos at the time of manufacture because scientific knowledge had not yet indicated it to be dangerous. Obvious Dangers/Generally known risks: 1) No Duty: no duty to warn of obvious dangers or of risk that are generally known. 2) Examples: tobacco, alcohol, swimming pools (diving headfirst into them). Nonobvious Dangers: may be liable for nonobvious dangers if risk was foreseeable (e.g. poured perfume onto lit candle; liable because reasonable perfume user might be smoking cigarette when applying perfume, and thus product was likely to ignite and warning was required). Learned Intermediary Rule: involves pharmaceuticals. 1) Warning to Physician only: Manufacturer of drugs only required to give warnings to prescribing physician (best person to understand needs and benefits of patient.) 2) Pharmacist: If warning offered to pharmacist, pharmacist also has duty to warn patient. Testing Adequacy of Warnings: 1) Risk, Reason, Consistency: Warning may be inadequate if it does not specify risk that the product presents, is inconsistent with how the product is to be used, or it does not give the reason for the warning. 2) Excessive Warnings: Courts are beginning to recognize that excessive warnings may reduce impact of important warnings. DAMAGES UNDER PRODUCT LIABILITY Personal Injury/Property Damage: recoverable. Punitive: Only if wanton, reckless, or malicious conduct. Purely Economic Loss: Not recoverable (e.g. loss of use of product, expectation costs.) DEFENSES Comparative Negligence: Operates as a defense in strict liability cases. 1) Assumption of Risk: Some states require assumption of risk to be present to invoke comparative. (a) Example ­ foreseeable uses: standing on a chair; wearing cocktail robe close to open flame; operating tractor downhill at fast speed. (b) Example ­ unforeseeable uses: Bic lighter not defective when it injured child because children not supposed to use it Contributory Negligence: In states where used, can bar 's recovery. 1) Abuse or Misuse of Product: If abuses or misuses product in an unforeseeable, abnormal use, and is injured, manufacturer not liable.

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